Court of Appeal decides that discrimination on grounds of migrant status of a domestic servant does not amount to race discrimination

These two appeals concerned factually similar cases. In both, the claimants were brought to the UK by Nigerian families under the migrant domestic worker visa scheme and were subjected to abuse and exploitation when they were working here for the families. Each commenced a series of claims in the employment tribunal, many of which were upheld. The claimants were both awarded substantial sums in damages. The appeal turns on their race discrimination claims, one of which was successful (Onu) and one of which was rejected (Taiwo). The main issue for the Court of Appeal to determine was whether the treatment of the claimants met the legal definition of race discrimination in circumstances where the reason for the claimants’ treatment was “[because she was] a vulnerable migrant worker … who was reliant on the [employers] for her continued employment and residence in the UK” (taken from the Reasons of the Tribunal in Taiwo). The two employment tribunals came to different conclusions about whether this amounted to race discrimination.

It was argued on behalf of Ms Taiwo by Robin Allen QC and Chris Milsom that where a non-British domestic servant is made to suffer abuse at work by reason of the employer having control over that person’s immigration status, that treatment will normally be, and was in Ms Taiwo’s case, direct race discrimination. A person’s immigration status is a direct function of their non-British nationality and the two are intimately associated. Therefore the proper comparison for the purposes of the race discrimination claim was with all persons who might work as domestic servants for the respondents, whether having a migrant status in the UK or not – i.e. whether non-British or British. The Employment Tribunal found that Ms Taiwo was treated the way she was because she was a migrant, which necessarily imports the opposite: British nationals not having her migrant status neither could, nor would, be treated by the respondents in the same way as they treated Ms Taiwo. Thus her treatment was direct race discrimination.

This argument was rejected by the Court of Appeal: in the leading judgment Underhill LJ stated that “It is now well-established that discrimination on a particular ground will only be treated as discrimination on the grounds of a protected characteristic if that ground and the protected characteristic exactly correspond” [which they did not in this case (paragraph 49)]. He went on to hold that:

… the ground on which the Respondents were held to have discriminated was, specifically, that the Claimants were migrant domestic workers, with the peculiar dependence on their employers that is a consequence of that status … To say that their immigration status (in that sense) is “intimately associated” with their non-British nationality – or, as the Tribunal in Onu put it, that the two are “linked” – is to say no more than that only people with non-British nationality are migrant domestic workers. That is obviously so; but what matters is that not all non-British nationals working in the UK are migrant domestic workers or share an equivalent vulnerability … (paragraph 50).

Thus he rejected the direct discrimination claim. The question of the correct comparator was avoided, Underhill LJ relying on Lord Nicholls’ speech in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (paragraphs 8-12) to the effect that in many cases it is more straightforward to address the question of the reason for the treatment complained of, in order to answer the question whether a comparator without the protected characteristic would have been treated in the same way (rather than considering the characteristics of a hypothetical comparator).

On a more positive note for Ms Onu, her appeal against the dismissal of her race victimisation claim was successful. Representatives of Ms Taiwo are considering seeking permission to appeal.